John Wallis, C.J.
1. It seems desirable at the outset to point-out that the decision of the Full Bench in Kunhacha Umma v. Kutti Mammi Hajee I.L.R. (1893) Mad. 201, which is questioned in the reference merely decides that among the followers of the Marumakkattayam law, when a gift is made by the father to the mother and her children, there is a presumption that they are intended to take such properties as the exclusive properties of the branch or tavazhi consisting of the mother and her children, that is to say, with the usual incidents of tarwad property. In the absence of express provision the presumption is that the property is to be enjoyed by the mother and her issue in the way in which property is customarily held and enjoyed among followers of the Marumakkattayam law. The decision proceeded on the authority of two decisions of their Lordships of the Judicial Committee which laid down that the law governing the parties is one of the circumstances to be taken into consideration in ascertaining the intention of the donor. As pointed out in the judgment of one of the Judges who made the reference to the Full Bench the presumption was arrived at in consideration of what were known to be the notions and wishes of persons in the position of the donor and also of the ordinary incidents of property in the district. This view was accepted by the Full Bench of four Judges two of whom Muttuswami Ayyar and Wilkinson, JJ., were well acquainted with Malabar, and that it was well founded is suggested by the fact that the decision has not only been accepted but has been given a considerable extension in the neighbouring State of Travancore, as pointed out during the argument by my learned brother speaking from. his experience as Chief Justice of that State. It has also been followed, as I shall show, in numerous cases in this Court, and was not questioned before Ummanga v. Appadorai Patter I. L. R. (1911) Mad. 387 a decision of Sir Arnold White, C.J., and Sankaean Nair, J., in 1910, and it may be taken that many transactions have proceeded on the footing that it was correct. In these circumstances, notwithstanding the respect which I feel for the opinion of Sankaran Nair, J., especially in a matter affecting his own community, I think we should be very slow to differ from the decision of the Full Bench unless we are absolutely obliged to do so, more especially as that decision merely relates to a presumption which it is always in the power of a donor to negative if so minded by express provision. If any change is to be made it should, it seems to me, be made by the legislature.
2. As regards the authorities, the decision in Kunhacha Umma v. Kutti Mammi Hajee I.L.R. (1893) Mad. 201, was not only not questioned but, as pointed out in subsequent cases, was accepted in Koroth Amman Kutti v. Perungottil Appu Nambiar I.L.R. (1906) Mad. 322, to which Sankaran Nair, J., was a party. It was followed in Pattatheruvath Pathumma v. Mannamkunniyil Abdulla Haji I.L.R. (1908) Mad. 228, Kunhamina v. Kunhambi I.L.R. (1909) Mad. 315, Katankandi Koma v. Siva Sankaran : (1910)20MLJ134 Chakkantavida Chakkan Abdulla v. Thazhath Cheekkootti I.L.R. (1911) Mad. 245, and Parvathi Kattilammah v. Ramachandra Ejamam (1910) M.W.N. 124. Lastly in Kalliani Ammah v. Govinda Menon I.L.R. (1912) Mad. 648, which was subsequent to Ummanga v. Appadorai Pattar I.L.R. (1911) Mad. 387, it was again accepted and acted on by Abdur Rahim and Sundara Ayyar, JJ., in a careful judgment in which all the authorities were examined. In this state of things it seems to me that it is not now open to us to question the decision of the Pull Bench even if we saw reasons to doubt that it had been correctly decided. ' 'With reference to the observations of their Lordships of the Judicial Committee in Jogeswar Narain Deo v. Ramchandra Dutt I.L.R. (1896) Calc. 670; S.C. 23 I.A. 37. Which are referred to by Sankaran Nair, J., that the principle of joint tenancy appears to be unknown to the Hindu law except in the case of a co-parcenary between members of an undivided family, it may be observed that these observations of their Lordships were made with reference to ordinary Hindu law and not to the peculiar Marumakkattayam system which was not under their Lordships' consideration. But even taking them to be applicable, I cannot see how a gift to a female and all her descendants in the female line can be held to infringe the principle, for that is the kind of joint family known to the Marumakkattayam system. On the other hand, the propriety of such a gift would appear to be recognized by their Lordships in Rai Bishen Vhand v. Mussumat Asmaida Koer (1883) 11 I.A. 164 in the passage cited by Benson and Sundara Ayyak, JJ., in Vengamma v. Chelamayya I.L.R. (1913) Mad. 484. The question whether a gift with the incidents of tarwad property could be made to the mother and some of her issue only, viz., those by a particular husband does not arise in this particular case, as the gift is to the children of the donor by a deceased wife and it is not suggested that she left any other children. It is therefore unnecessary to express any opinion on this point, or to refer to the authorities which are collected in the judgment of BENSON and Sundara Ayyar, JJ., just mentioned.
3. Following the decision of the Pull Bench in Kunhacha Umma v. Kutti Mammi Hajee I.L.R. (1893) Mad. 201 and the course of subsequent decisions I would answer the question in the reference as follows:
(1) The presumption is that the donees take the property with the incidents of tarwad property including those mentioned. (2) Persons subsequently born into the tavazhi are entitled to be maintained but not to claim partition. (3) An individual cannot alienate his share nor can it be attached and sold in execution of a personal decree against any of the members.
Sadasiva Ayyar, J.
4. I am prepared to follow the decision in Kunhaoha Umma v. Kutti Mammi Hajee I.L.R. (1893) Mad. 201 which is in conformity (so for as I find) with the views universally held by the communities following the ordinary Marumakkattayam law and with the intentions of a father (who might even belong to a Makkattayam community) who consorts with a lady belonging to a Marumakkattayam community and who makes or arranges a gift to his children born of his said Marumakkattayam wife.
5. The objection, based on the rule of perpetuity, to the validity of such gifts has been considered elaborately by Sundara Ayyar, J., in Vengamma v. Chelamayya I.L.R. (1913) Mad. 484 and I respectfully agree with his opinion that that rule cannot be applied so as to defeat gifts made to all the persons who can naturally form a joint Hindu family the gifted property to be held as joint family property or to the whole of a group of persons following the natural law Marumakkattayam forming a natural tavazhi group.
6. The objection based on the woman (whose husband makes a gift to his children by her) marrying another husband and begetting other children to the latter and on these children also belonging to her tavazhi along with her children by the first husband is not, in my opinion, insuperable. The result of that state of facts will only be that there will be two separate groups in the same tavazhi holding separate tavazhi property, the senior male in each tavazhi group being the karnavan of that tavazhi group. For instance, take the case of a woman and her children who form a tavazhi within a tarwad. Two of her daughters might form two different groups in the same tavazhi and their respective husbands might give properties to their respective children. Then, all these children would belong to the tarwad of their great grand-mother, would again belong to their grandmother's tavazhi and would also belong to the groups or sub-tavazhis of their respective mothers and hold those respective group properties separately. Just as there can be tavazhis within a tavazhi, there can be group tavazhis and sub-tavazhis in the same tavazhi. If two-groups or sub-tavazhis springing from two daughters who form a tavazhi can have separate sub-tavazhi properties, there is nothing startling in two branch tavazhis springing from the same lady (through her marrying two successive husbands) and holding separately their respective branch tavazhi properties. A tavazhi consists, no doubt, of the descendants of a single woman (I do not think that it includes the woman herself etymologically), but there is nothing to prevent the existence in that same tavazhi of two groups each of which groups might form a separate unit for the purpose of holding particular properties as if it was a separate tarwad and with the incidents of tarwad property. It cannot be said to be an unnatural separation between the two groups, unnatural in the sense of repugnance to the habits, practices and sentiments of the community. I agree to the answers proposed by my Lord.
Srinivasa Ayyangar, J.
7. In India it is not uncommon for groups of persons though not incorporated to hold properties as if they were corporate entities. Castes and sub-castes hold property as such, so also village communities. But the more common and familiar instances of such groups in Southern India are the joint Hindu family governed by the Mitakshara law, the Nambudri illom governed by the Makkattayam law, the Nayar tarwad governed by the Marumakkattayam law, and the Aliyasantan family of South Canara. The Mappillas of North Malabar generally follow the Marumakkattayam system and the parties to this suit are governed by that law. The incidents of such group holding are now well settled. In the case of Malabar tarwads such incidents include the impartibility of the property, the right by birth of persons born in the tarwad, and the management of the properties by the senior male member of the tarwad who is styled the karnavan.
8. The constitution of a Marumakkattayam tarwad is well known and is concisely stated in the extract from the report of the Malabar Marriage Commission printed in Raman Menon v. Raman Menon I.L.R. (1901) Mad. 73. The constitution of a joint Hindu family governed by the Mitakshara law furnishes a very close parallel (sea the description of such a family by Bashyam Ayyangar, J. in Sudarsanam Maistri v. Narasimhulu Maistri I.L.R. (1902) Mad. 149 . These groups cannot of course be created by agreement of parties. The tavazhis or the subordinate groups constituting the tarwad are, I think, capable of holding properties as corporate unitg with the incidents of tarwad property, at the same time retaining their joint interest in the properties of the main tarwad, just as branches and sub-branches in a Mitakshara joint Hindu family are capable of holding properties with the incidents of joint Hindu family property. I am also of opinion that some only of the members of a tavazhi cannot form a corporate unit capable of holding property as such. The husbands o the female members and the children of the male members of a tarwad are not members of the tarwad. It is not uncommon for them to make gifts of properties to their wives, daughters or sisters and their children, and such properties are called Puthravakasam properties. The question is whether, in the absence of express words in the grant, the tavazhi hold them as a corporate unit with the incidents of impartibility and right by birth, or whether the members of the tavazhi hold the property as co-owners, i.e., as tenants-in-common. I think these are the only two alternative views possible, and the second and third views mentioned in the referring order of Sankaran Nair, J., may be left out of consideration--Jogeswar Narain Deo v. Ram Chandra Dutt I.L.R. (1896) Calc. 670; S,C., 23 I.A. 37. This question was answered by a Pull Bench of this Court in Kunhacha Umma v. Kutti Mammi Hajee I.L.R. (1893) Mad. 201, and the answer was that such properties were held with the incidents of tarwad property. The basis of the decision was that was the usual mode of holding property by persons governed by Marumakkattayam law; and that the donors presumably intended to benefit not merely the existing members of the family but also those who may thereafter be born in the family. This decision was followed in a large number of cases in this Court, viz., Koroth Amman Kutti v. Perungottil Appu Nambiar I.L.R. (1906) Mad. 322, Pattatheruvath Pathumma v. Mannamkunniyil Abdulla Haji I.L.R. (1908) Mad. 228, Kunhamina v. Kunhambi I.L.R. (1909) Mad. 315, Katankandi Koma v. Siva Sankaran : (1910)20MLJ134 Chakkantavida Chakkan Abdulla v. Thazhath Cheekkootti : (1910)20MLJ368 Parvathi Kattilamma v. Ramachandra Ejaman (1910) M.W.N. 124, Kunhiraman v. Kunhi Parvathi (1910) M.W.N. 642 and Kalliani Ammah v. Govinda Menon I.L.R. (1911) Mad. 648.
9. For the first time, in Ummunga v. Appadorai Patter I.L.R. (1912) Mad. 387, a suggestion was made that if a tavazbi had not become a distinct tarwad by division or relinquishment of its joint interest in the properties of the main tarwad, the property held by that tavazhi will not have the incidents of tarwad property; and the Full Bench decision in Kunhacha Umma v. Kutti Mammi Hajee I.L.R. (1893) Mad. 201 was explained as deciding only that the interest of a member of such a tavazhi lapsed to the other members of the tavazhi, if that interest has not been alienated during his life-time. With the greatest respect to the learned Judges I am unable to accept this explanation. It ignores the fact that in properties held with the incidents of tarwad property no individual member has an alienable interest. It is to be observed that SANKARAN NAIB, J., who was one of the Judges who decided that case, at that time seems to have been of opinion that it is only in cases where a tavazhi becomes a distinct tarwad by ceasing to have any interest in the properties of the main tarwad, that it can hold properties with the incidents of tarwad property; but in the order of reference the learned Judge concedes that the rale would apply even in cases where the tavazhi retains its interest in the properties of the main tarwad, provided that the members of the tavazhi live separately from the other members of the tarwad. He thinks that Kunhacha Umma v. Kutti Mammi Hajee I.L.R. (1893) Mad. 201 was a case of that sort. In any case he thinks that decision should not be extended to tavazhis whose members do not live separately with separate karnavan of their own. In the Full Bench case--Kunhaoha Umma v. Kutti Mammi Hajee I.L.R. (1893) Mad. 201 -- so far as one can gather from the report, the tavazhi do not seem to have been living separately with a separate karnavan of their own. In many of the cases which followed the Full Bench decision, the members of the tavazhi do not appear to have lived separately with a separate karnavan. I am unable to see how the fact of separate living by the members of a tavazhi without a separation in interest can possibly affect the capacity of the tavazhi to hold property or the incidents of the property held by them as such tavazhi. In Krishnan v. Damodaran I.L.R. (1915) Mad. 48 a Full Bench of this Court decided that where a female member of a tavazhi dies, her separate property is inherited by her tavazhi as such, i.e., as a corporate unit. Though in Govindan Nair v. Sankaran Nair I.L.R. (1909) Mad. 351, it was held by two Judges of this Court, a third Judge dissenting, that the separate property of a male member of a tavazhi on his death lapses to the tarwad and not to the tavazhi, the opinion collected in the referring order in that case show clearly the consciousness of the people that the tavazhi was a separate entity which ought to inherit the property of both the male and female members of that tavazhi. In a case where the tavazhi succeeds to the property of a deceased member, that property will be managed, I assume, by the senior male member of that tavazhi and the members of that tavazhi will have the additional advantage of participating in the income of that property. I see no difficulty in the tavazhi holding the properties to which it succeeded with the incidents of tarwad property.
10. Two points are taken by Sankaran Nair, J., in the order of reference. One, that a tavazhi which has not separated itself in the sense mentioned above cannot cease to be under the control of the karnavan of the tarwad and cannot have a karnavan of its own; and the other, that a tavazhi may consist of children of different fathers. In Koroth Amman Kutti v. Perungottil Appu Nambiar I.L.R. (1906) Mad. 322, MOORE and Sankaran Nair, JJ., had no difficulty in holding that Puthravakasam property held by a tavazhi was held with the incidents of tarwad property though the mere gift of property to a tavazhi did not constitute them a distinct tarwad. In Kalliani Ammah v. Govinda Menon I.L.R. (1912) Mad. 648, all the previous cases were considered by Abdur Rahim and Sundara Ayyar, JJ., and the relation of the senior male member of a tavazhi managing the properties of the tavazhi to the other members of the tavazhi was indicated. They say: 'There can be no doubt that he cannot have all the rights of a karnavan over the junior members of his tarwad. He is not their guardian and has no right of supervision or control over them. He is not responsible for their protection, education or maintenance. His right is confined to the management of the special property owned by him and the other members of his branch.' I do not think that a tavazhi [which] is not [a] separate tarwad with a separate karnavan of its own is an impediment to their holding property with the incidents of tarwad property. As regards the second point there is of course the possibility of a woman to whom properties are given by one husband marrying another and having children by him. All the children of that woman would form members of her tavazhi. It is certainly difficult to presume an intention in the first husband to grant the property to his wife's children by another husband. Such cases are likely to occur very rarely. After all the rule is one of construction and even if the decision in Kunhacha Umma v. Kutti Mammi Hajee I.L.R. (1893) Mad. 201 is open to question [I think it is not] we ought not to depart from it after it has been followed for such a long time.
11. It is now necessary to notice another contention of Mr. Ramachandra Ayyar which does not seem to have been put forward before the referring Judges. He contends that no gift or grant of property can be made to a tarwad so as to enable it to hold that property with the incidents of tarwad property; such a grant, he contends, amounts to a grant in favour of unborn persons and therefore contrary to the decision of the Privy Council in the Tagore case. I understand him to concede that a tarwad could purchase properties and hold them with the incidents of tarwad property. If they can do that, I do not see why they should not take a gift and hold the properties with the incidents of tarwad property. The fallacy underlying the argument is that the grant is a grant made in favour of unborn persons. The gift is made to the entity which is called the tarwad or tavazhi and the law governing the parties regulates the mode of succession and enjoyment. Mr. Ramachandra Ayyar relied on a dictum of the Bombay High Court in Bai Diwali v. Patel Bechardas I.L.R. (1902) Bom. 445 and on Kishori Dubain v. Mundra Dubain I.L.R. (1911) All. 665. There is nothing in the Allahabad case to support his contention, and the passage in Bai Diwali v. Patel Bechardas I.L.R. (1902) Bom. 445 is only an expression of doubt. On the other hand, the decision in Vengamma v. Chelamayya I.L.R. (1913) Mad. 481 supports the contrary conclusion.
12. My answer to the first question is that it is not the giving of properties by a person to his wife and children that constitutes them a tarwad or tavazhi, but that if properties are given to a wife and children following the Marumakkattayam law, they as a tavazhi hold those properties with the incidents of tarwad property, and the right of management of the properties is vested in the senior male member of that tavazhi.
13. I answer the first part of the second question in the affirmative and second part in the negative.
14. I answer the third question in the negative.